Florida Board Certified Construction Attorney

Avvo Q&A #1: Does a Motion to Compel arbitration have to be in lieu of an answer to avoid waiver in Florida?

Filing an answer and participating in discovery might be construed as a waiver of your right to arbitrate. The test for waiver has been articulated in several ways by the courts. For instance, the Eleventh Circuit has stated the test as follows: In determining whether a party has waived its right to arbitrate, we have established a two-part test. First, we must decide if, “under the totality of the circumstances,” the party “has acted inconsistently with the arbitration right,” and, second, we look to see whether, by doing so, that party “has in some way prejudiced the other party.” While the Third Circuit agrees that prejudice to the opposing party is the “touchstone for determining whether a right to arbitration has been waived” five additional factors are to be considered: (1) the degree to which the party seeking to compel arbitration has contested the merits of its opponent’s claims; (2) whether that party has informed its adversary of the intention to seek arbitration even if it has not yet filed a motion to stay (3) the extent of the non-merits motion practice; (4) its assent to the court’s pre-trial orders; and (5) the extent to which both parties have engaged in discovery. The Tenth Circuit also has a test for waiver: (1) whether the party’s actions are inconsistent with the right to arbitrate; (2) whether the “litigation machinery has been substantially invoked” and the parties are well into preparation of a lawsuit” before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay of proceeding; (5) “whether important intervening steps [e.g. taking advantage of judicial discovery procedures not available in arbitration] had taken place”; and (6) whether the delay “prejudiced” the opposing party . Move to arbitrate and ask for some limited discovery. A great background discussion is found in a case I arbitrated on behalf of Graham Contracting. The citation is Graham Contracting, Inc. v. Flagler County, 444 So. 2d 971 (Fla. Dist. Ct. App. 1983)